Probate under the Indian Succession Act is not mandatory for Wills executed by Hindus concerning properties situated outside the designated original civil jurisdiction of the High Court. A Will must be strictly proved through attesting witnesses, and the propounder must resolve all suspicious circumstances to establish validity.

JUDGMENT :

C.PRATHEEP KUMAR, J.

1. FACTS OF THE CASE: The 2^nd defendant in O.S. 223 of 2004 on the file of the Subordinate judge's court, Thalassery, preferred this appeal, being aggrieved by the preliminary judgment and decree passed by the trial Court in the above suit for partition of some landed property situated within Kannur District, which was part of erstwhile Madras Presidency. The children of late Mr. Sumathi, who died on 02.10.1990, are the plaintiffs 1 to 4 and defendants 1 and 2 in the suit. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court).

2. According to the plaintiffs, late Sumathi executed his last Will namely Exhibit A3 which was a typed Will dated 27.04.1989, and as per which he bequeathed the plaint schedule property covered by Ext. A1 title deed, equally among his six children. Therefore, the plaintiffs prayed for partition of the plaint schedule property into 6 equal shares and to allot 4 shares to them. They would also contend that before the execution of Ext. A3 Will, Sumathi executed Ext. A2 holographic Will dated 9.11.1984, in which also he bequeathed the plaint schedule property to all his six children equally. The defendants disputed the above claim of the plaintiffs and according to them, Sumathi executed a registered Will namely Ext. B10 on 19.05.1984 in which the 2^nd plaintiff was excluded from inheriting the property. Therefore, they would contend that the plaint schedule property is to be partitioned as per Ext. B10. They would further contend that thereafter, Sumathi executed Ext. B2 holographic Will on 04.12.1984 and through the said Will he had cancelled all previous Wills and restored Ext. B10.

3. EVIDENCE AND FINDING OF THE TRIAL COURT: The evidence in the case consists of the oral testimonies of PWs 1 to 3 and DWs 1 and 2 and documentary evidence Exts.A1 to A7 and B1 to B10. After evaluating the evidence, the trial Court found that both the sides failed to prove the execution of all the above Wills and accordingly ordered to partition the plaint schedule property into six equal shares and allowed one share each to plaintiffs 1 to 4 and defendants 1 and 2. It was aggrieved by the above preliminary judgment and decree that the 2^nd defendant preferred this appeal.

4. QUESTIONS OF LAW: In this appeal, an interesting argument was raised by the learned counsel for the 3^rd respondent Sri.R. Surendran, that, in the light of Section 213(1) read with Section 57(a) and (b) of the Indian Succession Act, for a Hindu claiming right under a Will executed before the amendment of 2025, over a property situated within Kannur District, which was part of erstwhile Madras Presidency, probate or letters of administration is mandatory. Since in this case no such probate or letters of administration was obtained, he prayed for dismissal of the appeal on that ground itself. Another argument advanced by the learned counsel for the respondents was that though Ext.A2 was not proved as a Will, it could be used as a revocation of Ext.B10, as according to them, the rigor of proof of a revocation is much less than that of a Will. It was further argued that, once Ext.B10 was cancelled as per Ext.A2, it cannot be subsequently revived